Blue v. Baenen et al

Filing 52

ORDER signed by Judge Rudolph T. Randa on 6/22/2015. 42 Plaintiff's MOTION to Supplement GRANTED. 44 Plaintiff's MOTION for Discovery DENIED as moot. 49 Plaintiff's MOTION to Appoint Counsel DENIED. Plaintiff may file motion for extension of time to complete discovery withing 10 days. (cc: all counsel, via mail to Randall Blue at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RANDALL BLUE,
Plaintiff,
-vs-

Case No. 13-CV-1439

WARDEN MICHAEL BAENEN,
CATHY FRANCOIS,
YANA PUSICH, and
DR. MARY SAUVEY,
Defendants.

DECISION AND ORDER
The plaintiff has filed a “motion to add attachments to my discovery”
(ECF No. 42).

He requests that the Court place the attachments to his

motion, which are Health Service Requests he filed with his institution, in his
“original discovery.” The plaintiff has filed these documents and they are now
part of the Court’s record in this case. To the extent that he requests that
they be a part of the record, his motion will be granted.
Next, the plaintiff has filed a “motion requesting all prior inmates[‘]
complaints about the safety of bunk-beds at Green Bay Corr. Inst.” (ECF No.
44).

It appears that this “motion” is actually a discovery request to the

defendants. The plaintiff does not seek action from the Court. Thus, the

Court will deny the motion as moot.1
On April 17, 2015, the plaintiff filed a third amended complaint. He did
not seek leave of the Court by filing a motion to amend the complaint. See
Fed. R. Civ. P. 15(a)(2); Civil L.R. 15(b) (E.D. Wis.). The Local Rules provide
in relevant part:
(a)
Any amendment to a pleading, whether filed as a matter of
course or upon a motion to amend, must reproduce the entire
pleading as amended, and may not incorporate any prior
pleading by reference.
(b)
A motion to amend a pleading must state specifically what
changes are sought by the proposed amendments. The proposed
amended pleading must be filed as an attachment to the motion
to amend.
Civil L.R. 15 (E.D. Wis.)
Even if the plaintiff had filed a motion to amend the complaint, the
Court would be required to screen the proposed complaint pursuant to 28
U.S.C. § 1915A. The plaintiff seeks to add a medical care claim against Nurse

The plaintiff is advised that the way to obtain information during the course of
this action is to make discovery requests of the defendants and not from the court. Rules
26 through 37 of the Federal Rules of Civil Procedure describe the various ways in
which a party can seek discovery. The plaintiff is advised that he should send his
discovery requests to the appropriate defendant’s attorney.
1

The court only becomes involved in the discovery process if a party fails to
respond to interrogatories or requests for production of documents. Then, the other
party may file a motion to compel discovery with the court, but only after conferring or
attempting to confer with the party failing to make disclosure or discovery in an effort to
obtain it without court action. Such an attempt to resolve discovery disputes between
parties is required before filing a motion to compel discovery. The motion should
describe these efforts. See Fed. R. Civ. P 37(a); Civil L. R. 37 (E.D. Wis.).

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Lemmens based on allegations that she failed to provide him with a medical
mattress in April 2015, aggravating the injuries he suffered from an August
2013, fall from his bunk bed. Although the third amended complaint seeks to
add this claim against Nurse Lemmens, she is not named as a defendant in
the caption of the complaint. Moreover, it is not clear that a claim against
Nurse Lemmens would be properly joined in this case. See Fed. R. Civ. P.
18(a), 20(a). Finally, the Court notes that the third amended complaint does
not contain any allegations against defendant Dr. Mary Sauvey. In sum, the
third amended complaint is not the operative complaint in this action. Even if
the plaintiff had filed a motion to amend, the Court would not permit him to
proceed on the third amended complaint.
Lastly, the plaintiff has filed a motion to appoint counsel (ECF No. 49).
He asserts that the jailhouse lawyer who previously helped him in this case is
no longer available. The plaintiff also asserts that this case is becoming more
complicated and that he is in “no position” to obtain his medical records from
the clinics that performed his back surgeries.
In a civil case, the Court has discretion to decide whether to recruit a
lawyer for someone who cannot afford one. Navejar v. Iyola, 718 F.3d 692, 696
(7th Cir. 2013); 28 U.S.C § 1915(e)(1); Ray v. Wexford Health Sources, Inc.,
706 F.3d 864, 866-67 (7th Cir. 2013). First, however, the person has to make
a reasonable effort to hire private counsel on their own. Pruitt v. Mote, 503

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F.3d 647, 653 (7th Cir. 2007).

After the plaintiff makes that reasonable

attempt to hire counsel, the Court then must decide “whether the difficulty of
the case — factually and legally — exceeds the particular plaintiff’s capacity
as a layperson to coherently present it.” Navejar, 718 F.3d at 696 (citing
Pruitt, 503 F.3d at 655). To decide that, the Court looks, not only at the
plaintiff’s ability to try his case, but also at his ability to perform other “tasks
that normally attend litigation,” such as “evidence gathering” and “preparing
and responding to motions.” Id.
Here, the plaintiff has demonstrated that he made a reasonable
attempt to find an attorney. However, his recent filings, presumably made
without assistance from a jailhouse lawyer, demonstrate that he can still
litigate this case.

He has made discovery requests on the defendants,

including one since filing his motion to appoint counsel. In addition, despite
the plaintiff’s assertions, he should be able to obtain his own medical records.
The Court concludes that the plaintiff is competent to conduct discovery and
file, or respond to, a dispositive motion.
The Court notes that the plaintiff’s latest discovery request — a
request for production of documents filed on June 1, 2015, is untimely because
the deadline for the completion of discovery was June 8, 2015. See Civil L.R.
26(c) (E.D. Wis.) (“Completion of discovery means that discovery . . . must be
scheduled to allow depositions to be completed, interrogatories and request for

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admissions to be answered, and documents to be produced before the deadline
and in accordance with the provisions of the Federal Rules of Civil
Procedure.”). If the plaintiff needs additional time for discovery, he should file
a motion for extension of time within ten days of the date of this order.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT the
plaintiff’s motion to add attachment to discovery (ECF No. 42) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion for discovery
(ECF No. 21) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the plaintiff’s motion to appoint
counsel (ECF No. 49) is DENIED.
IT IS FURTHER ORDERED that the plaintiff may file a motion for
extension of time to complete discovery within ten days of the date of this
order.
Dated at Milwaukee, Wisconsin, this 22nd day of June, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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